Wali (Migration)

[2021] AATA 5649

Wali (Migration) [2021] AATA 5649 (3 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr M Shabab Wali

VISA APPLICANT:  Mr Mohammod Danesh Bin Wali

CASE NUMBER:  1921858

HOME AFFAIRS REFERENCE(S):          BCC2019/2404722

MEMBER:Naomi Schmitz

DATE:3 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

Statement made on 03 November 2021 at 11:59am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – Sponsored Family stream – genuine temporary entrant – compliance with past conditions – travel history – intention to comply with future conditions – other relevant matters – insufficient incentives to return – migration history – application for permanent residency – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 600.211; Schedule 8, Condition 8531

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 July 2019 to refuse to grant the visa applicant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 6 May 2019. At the time the visa application was lodged, Class FA contained one subclass, Subclass 600 (Visitor), with a number of different streams. In this case the applicant applied for the visa seeking to satisfy the primary criteria in the Sponsored Family stream.

3. The criteria for a Subclass 600 visa are set out in Part 600 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly to this case, they include cl 600.211, which requires the visa applicant to satisfy the Minister that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

4. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl 600.211 because the delegate was not satisfied that the visa applicant genuinely intended to stay temporarily in Australia for the purpose for which the visa is granted.    

5. The review applicant appeared before the Tribunal on 25 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the visa applicant’s daughter, Ms Jeba Humayra (Ms Humayra) who gave evidence from Dhaka, Bangladesh. The visa applicant’s former employer Mr Abu Sayem was available to give evidence, but the Tribunal did not require evidence from him, given the visa applicant is no longer employed by him, ceasing work over a year ago.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. After this matter was constituted to the Tribunal Member on 7 October 2021, the Tribunal wrote to the review applicant and requested updated information and records to be provided by 18 October 2021 including; a copy of the visa applicant’s passport ensuring that all  passport country stamps are visible; an itemised list of all countries the visa applicant has travelled to, if any, including the  arrival and departure dates; evidence of the visa applicant’s current employment, if any, including recent evidence     of pay slips and taxation returns; evidence of ownership of property, such as a certificate of title         and approximate value; if the visa applicant is currently leasing property, evidence of the duration of the lease; any updated information and records about the visa applicant’s assets and financial        situation such as money in bank accounts; and any other information relevant to the visa applicant’s activities or commitments  or relationships in his home.

9. In response on 18 October 2021, the representative provided the following documentation; previous passports (front pages only); current passport (front page only); a word document spreadsheet containing a list of countries the visa applicant claimed he had travelled to; an employment reference and net pay from the visa applicant’s previous employer ‘The Aristocrat Restaurant’; documents regarding properties owned by the visa applicant; a fixed deposit account with 4,000,000.00BDT equivalent to $62,796.00AUD; a certificate of registration for the visa applicant’s business DEAL GLOBAL; a bank statement for DEAL GLOBAL with 394,330.18 BDT equivalent to $6,121.80 AUD; a military service card and booklet; Army Golf Club membership; an International School Parent card dated 2018-2019; a decision record and notification letter dated 22 July 2019 refusing the visa applicant’s Visitor Visa (Sponsored Family) Subclass 600; and two acknowledge letters from the Department relating to the visa applicant’s withdrawal of two previous working visas applications for a Regional Employer Nomination Subclass 187 visa and Temporary Skill Shortage (Short Term) Subclass 482 visa.

10. The issue in this case is whether cl 600.211 is met, which requires the Tribunal to be satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, having regard to whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; whether the applicant intends to comply with the conditions to which the Subclass 600 visa would be subject; and any other relevant matter.

11. The visa applicant is a 48-year-old citizen of Bangladesh. In the present case, the visa applicant seeks the visa for the purposes of visiting his brother, the review applicant who resides in Melbourne and who is an Australian citizen. This is a purpose for which a visa in the Sponsored Family stream may be granted: cl 600.231.

12. The visa applicant requested a visitor visa for up to three months, with a planned arrival date of 30 May 2019 and a departure date of 30 June 2019.

13. In considering whether a visa applicant genuinely intends to stay temporarily in Australia for this purpose, the Tribunal must consider whether he or she has complied substantially with the conditions of the last substantive visa held, or any subsequent bridging visa (cl 600.211(a)).

14. In the present case, the visa applicant has not previously travelled to Australia. Consequently, there is no demonstrated compliance or non-compliance with previous visa conditions upon which the Tribunal can use to assess whether the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted.

15. The Tribunal must also consider whether the visa applicant intends to comply with the conditions to which the Subclass 600 visa would be subject (cl 600.211(b)). The conditions to which a visa in the circumstances of this case would be subject are as follows (cl 600.612):

    ·8101 – must not work in Australia

    ·8201 – must not engage in study or training in Australia for more than 3 months

    ·8503 – not entitled to a substantive visa, other than a protection visa, while remaining in Australia

    ·8531 – must not remain in Australia after end of permitted stay.

16. The Tribunal has also considered all other relevant matters (cl 600.211(c)).

17. The visa applicant gave evidence that the purpose of his visit was to see his brother and his brother’s family, who he had not seen since 2019 when his brother returned to Bangladesh. He intended to stay for approximately two to three weeks in Australia. The visa applicant also gave evidence that at the time of application, his main purpose for visiting Australia, was to see his daughter, a student on a temporary visa, who was ill in early 2019. At the time of the hearing she was abroad in Bangladesh, departing Australia on 5 May 2020 and has been unable to return due to the COVID-19 pandemic.

18. The Tribunal enquired as to what travel, if any, the visa applicant has undertaken outside Bangladesh. The visa applicant stated he has travelled to 13 different countries on 35 different occasions, including Liberia, Kenya, the United Arab Emirates (UAE), Ghana, Thailand, Malaysia, the United Kingdom (UK), Japan, India, Sir Lanka, South Africa, Bhutan, Maldives, Saudi Arabia, Morocco and Indonesia. He also gave evidence of being granted a visa to the United States of America (USA) in 2004 and in 2019 (being valid 2024).

19. The Tribunal accepts that the visa applicant has undertaken some of the above travel. However, the Tribunal does not accord compliance with visas during this travel with significant weight, due to much of the travel being so long ago, it being for short durations and during the visa applicant’s employment. The Tribunal also places limited weight on the visa applicant’s travel to Bhutan and India due to the closeness of these countries to Bangladesh, which share a border to the north and west. The Tribunal also places limited weight on this previous travel as evidence that the visa applicant intends a genuine temporary stay, as the visa applicant has a brother who is a close family member in Australia, that he did not have in the above-named countries. The visa applicant did not provide any independent corroborative evidence of his travel to Japan, Sir Lanka, South Africa, the Maldives, Morocco and Saudi Arabia. The visa applicant is yet to travel to the USA and therefore no weight can be placed on the fact that he has been granted visas.

20. The Tribunal enquired where the visa applicant’s family reside. The visa applicant stated he has a brother who resides in Melbourne and a daughter who is studying in Melbourne and who plans on returning once international travel resumes. His wife, son, brother, sister and mother live in Dhaka, Bangladesh. He has some cousins in the UAE, the UK and Japan. The review applicant gave evidence of the same, adding that he also has cousins in the USA, Sydney and Melbourne. The Tribunal accepts the visa applicant and review applicant’s evidence, and places some weight, but ultimately is of the view that it would not provide a sufficient incentive to return and is outweighed by other factors discussed below.

21. The Tribunal enquired what incentives the visa applicant had to return to Bangladesh. The visa applicant stated he has a wife who he has been married to for 22 years and a son who is almost eight years old, who is enrolled at an International School in Dhaka. His wife is currently unemployed and claims to be financially dependent on the visa applicant. The visa applicant stated that he served in the Bangladesh military for 18 years and that he has a ‘good track record’. He stated he commenced his own business DEAL GLOBAL in August 2020, which supplies chemicals, information technology items, plastic chairs and does construction work. He later claimed it supplied motor vehicles and rations to the Bangladesh Defence Force.

22. The Tribunal asked the review applicant whether he had any evidence in support of his business’s profitability, such as taxation returns and highlighted that obsolete records from the visa applicant’s prior employment ‘The Aristocrat Restaurant’ had been provided. The visa applicant stated that he was yet to do his tax return, but claimed to earn 40,000,000BDT per annum equivalent to $624,495.00 AUD. A bank statement containing 394,330.18 BDT equivalent to $6,121.80 AUD was provided. The Tribunal has considered the visa applicant’s oral evidence and material before it, however, is not satisfied that the visa applicant’s business constitutes a strong economic incentive to return, as there is no independent evidence as to the business’ profitability or the visa applicant’s income. Further, the business account balance is inconsistent with the visa applicant’s claims of it being a successful business. The Tribunal found the visa applicant’s evidence unreliable and not credible.

23. The visa applicant submitted he is a member of multiple clubs which would provide a strong incentive for him to return to Bangladesh. While the Tribunal acknowledges that he is a member of numerous clubs, including the Cadet College Club, Army Golf Club and the Retired Armed Forces Officer’s Welfare Association, limited weight is placed on these club memberships, as there are similar clubs in Australia, such as golf clubs, which the visa applicant could equally join and who would welcome the visa applicant. Furthermore, the visa applicant on two prior occasions applied to migrate to Australia on working visas (permanent and temporary), despite being a member of the above-named clubs at the time of applications. The Tribunal Member put to the visa applicant that he was prepared on two previous occasions to abandon these club memberships and had concerns that the club memberships would not act as an incentive to return as claimed by the visa applicant. The Tribunal notes the visa applicant only withdrew his working visa applications in March 2019, just prior to his visitor visa application. The visa applicant was unable to provide a credible explanation. Balancing the objective evidence and the visa applicant’s claims, the Tribunal is not satisfied that such club memberships would provide an incentive to return and found the visa applicant’s evidence disingenuous.

24. The Tribunal asked the visa applicant what assets, if any, he owned. The visa applicant stated he owns four apartments, one of which he resides in with his wife, son, mother and brother and three which he leases and receives an income from. A summary of valuation report was provided. The visa applicant also provided a bank statement containing 4,000,000.00 BDT equivalent to $62,108.36AUD. He also claimed to own a motor vehicle, a Honda CRV 2008 model.

25. The Tribunal accepts the visa applicant owns four properties, however places limited weight on them, due to three of the properties being occupied by third parties and the visa applicant co-habiting with his brother and mother, who he no doubt would not render homeless. The Tribunal also notes that the visa applicant owned all such properties when he made his previous working visa applications, which raises doubts that such properties would provide an incentive to return, given he was prepared to abandon them and reside permanently and on a long term basis in Australia. The Tribunal places limited weight on the visa applicant’s personal savings as an incentive to return to Bangladesh, as the money could be easily transferred or withdrawn or accessed within Australia. The Tribunal also places limited weight on the motor vehicle as it could be easily transferred or sold.

26. The visa applicant gave evidence that as a result of his military service, he is in receipt of a monthly pension in the sum of 10,000BDT equivalent to $156.00AUD per month. He claimed he would lose his pension if he did not return once a year to Bangladesh.

27. The Tribunal accepts that the visa applicant is in receipt of a pension, however due to the small sum, the Tribunal places little weight on it as an incentive to return. Further, there is no evidence before the Tribunal that the visa applicant would lose his pension entitlement if he were to remain permanently in Australia and therefore limited weight can be placed on it as an incentive to return to Bangladesh. The Tribunal notes the visa applicant was in receipt of his pension when he previously applied for permanent residency and a temporary working visa and therefore the Tribunal does not accept that this would provide a strong incentive for him to comply with condition 8531 and leave Australia at the end of his permitted stay,

28. The Tribunal put to the visa applicant his migration history, namely an application for permanent residency in November 2017, when he applied for a Regional Employer Nomination Subclass 187 visa, as a café or restaurant manager, with his wife, daughter and son being accompanying migrating members of his family unit. At the time, the visa applicant was a Senior Restaurant Manager and his wife was an Assistant Restaurant Manager. The visa applicant withdrew this application in March 2019 after the Department conducted a site check and found the restaurant had never traded at the site alleged and asked the visa applicant to comment. In October 2018, the visa applicant applied for a two-year Temporary Skill Shortage Subclass 482 visa, again as a café or restaurant manager. This application was withdrawn in March 2019 by the visa applicant after the Department asked for further information.

29. The Tribunal put to the visa applicant that both applications indicated an intention to reside in Australia on a long-term basis. The Tribunal Member also highlighted that the visa applicant’s economic situation was stronger at the time of these applications, given both the visa applicant and his wife were employed. The Tribunal also notes, that at the time of these applications, the visa applicant had more family members who resided in Bangladesh, including his father and mother in-law who are now deceased. The visa applicant was given an opportunity to comment. The visa applicant stated it was ‘two years ago’ and maintained he would return to Bangladesh. He further explained that he came to know his sponsors through some “Bangladeshi people’ and had not communicated with them prior to making his visa applications. He stated the review applicant had no involvement with his two prior working visa applications.

30. Under the natural justice provisions pursuant to s359AA of the Migration Act, the Tribunal put to the review applicant, the visa applicant’s migration history and advised that it had obtained his two prior working visa Departmental files. The review applicant was provided with the opportunity to comment. The review applicant appeared genuinely surprised and stated he had no involvement or knowledge of the visa applicant’s prior visa applications and only knew of his brother’s current visitor visa application, of which he is the sponsor. The Tribunal accepts the review applicant’s evidence. Considering the visa applicant’s migration history and oral evidence, the Tribunal did not find the visa applicant’s evidence credible and is not satisfied that he has a genuine intention of staying temporarily in Australia.

31. Ms Humayra gave evidence that her father’s incentives to return included his business and family. She stated she had recovered from her uretic (kidney) stone in 2019, and since being in Bangladesh had contracted COVID-19 and suffered depression due to not being in Melbourne with her friends and missing onsite learning. The Tribunal accepts her evidence regarding her medical condition and family, but places little weight on her father’s business as an incentive to return due to it not being supported by independent evidence.

32. The review applicant stated that he would be prepared to lodge a security bond in the sum of $10,000.

33. The Tribunal explained that as a relevant factor pursuant to cl 600.211(c), that it needs to consider the situation of a visa applicant’s home country, Bangladesh, as this may appear to be a disincentive to return. The Tribunal referred to the most recent Department of Foreign Affairs and Trade (DFAT) Report, which refers to Bangladesh experiencing significant political, social and economic turmoil since independence. The security situation is volatile and can deteriorate quickly with politically motivated violence, terrorist attacks, criminal violence and clashes between different ethnic groups including in the visa applicant’s hometown of Dhaka where in July 2016 two police officers were killed and 20 people taken as hostages. Bangladesh is classified as a lower middle-income country. The general quality of education is low. Health care facilities in Bangladesh are generally poor in quality. Corruption is endemic in the judicial system, police and public service. The report refers to the country continuing to face growing authoritarianism, extreme political polarisation and escalated tensions between Islamists and secularists. The Tribunal member contrasted Bangladesh’s situation with Australia, which is economically stronger, has a well-resourced health care system and independent judiciary and public service.[1]

    [1] Department of Foreign Affairs and Trade Country Information Report – Bangladesh dated 22 August 2012

1. The visa applicant did not dispute that Australia was economically stronger and stated that given the large population of Bangladesh, the terrorist killings constituted a small percentage. He re-iterated his desire was just to visit his daughter. The review applicant similarly did not dispute the contents of the DFAT report stating Bangladesh was ‘not the greatest place to be in’, but stressed that his brother was ‘better than most people’ had had access to medical resources and that those issues referred to ‘don’t directly affect him’. The Tribunal accepts that not all factors mentioned above impact on the life of the visa applicant, however, there is no doubt that Australia is a more prosperous, transparent, well-resourced and stable country than Bangladesh. 

2. The visa applicant gave evidence that he did not have any well-founded fear of any form of persecution in Bangladesh due to his race, religion, nationality, membership of a particular social group or political opinion. The visa applicant is Sunni Muslim from the majority Bengali ethnic group, which makes up 98% of the Bangladesh population.[2] The review applicant gave evidence of the same.

   [2] Ibid

3. The Tribunal has considered all matters carefully. The visa applicant has a valid reason to visit Australia to see his brother. Although the visa applicant has travelled to numerous countries, most of these were some years ago, employment related or to counties where no close family reside, unlike Australia where the visa applicant has a brother. The Tribunal is also not satisfied that there is a sufficient economic incentive to return, as no cogent evidence as to the success of the visa applicant’s recently established business or income was provided. The Tribunal is not satisfied that the visa applicant’s family, various club memberships, pension or property would provide an incentive to return and notes all existed at the time of his two previous working visa applications. The Tribunal, having reviewed the visa applicant’s prior migration files, notes the visa applicant was in a stronger economic position and had more family members in Bangladesh when these visa applications were lodged and the Tribunal has concerns the visa applicant has an intention to reside in Australia on a long-term basis. The Tribunal is not satisfied the visa applicant’s saving would be a sufficient incentive to return, as money is easily transferrable offshore or could be withdrawn. While the review applicant is prepared to provide a security bond, the Tribunal is of the view that this is offset by the less desirable situation in Bangladesh. The visa applicant did not present as a reliable or credible witness.

4. Thus, considering all these matters cumulatively, even though there are some incentives to return, the Tribunal is not satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted, and finds that the requirements of cl. 600.211 are not met and that he does not intend to comply with Condition 8531.

   DECISION

5. The Tribunal affirms the decision not to grant the visa applicant a Visitor (Class FA) visa.

   Naomi Schmitz
   Member